IN THE CASE OF:	

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110024836 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show that his Date of Initial Entry to Military Service (DIEMS) is 24 September 1973.

2.  The applicant states that the Defense Finance and Accounting Service (DFAS) is paying him based on his Pay Entry Basic date (PEBD) of December 1981 instead of his DIEMS date of 24 September 1973, which affects the formula under which he should be paid. 

3.  The applicant provides a copy of a letter he dispatched to DFAS on 16 February 2010, a copy of orders transferring him to the Retired Reserve, and a copy of a printout explaining the three retirement plans for military members.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant was born on 5 November 1954 and enlisted in the U.S. Navy on 24 September 1973.  He served on active duty until he was honorably released from active duty (REFRAD) on 23 September 1978 and was transferred to the Naval Reserve (USNR).  He was honorably discharged from the USNR on 
23 September 1979.

3.  On 22 September 1987 he again enlisted in the USNR and continued to serve until he was honorably discharged on 21 December 1990.

4. On 22 December 1990 he enlisted in the U.S. Army Reserve (USAR) and served in a troop program unit (TPU) until 22 December 2002 when he was transferred to the USAR Control Group (Reinforcement).  

5. On 8 January 2003 he enlisted in the New Mexico Army National Guard (NMARNG) and served there until he was transferred to the Retired Reserve on 10 June 2008.

6.  On 1 April 2008 a Physical Evaluation Board convened at Fort Lewis, Washington which determined that the applicant was unfit for duty due to left knee instability and recommended permanent retirement with a 30% disability rating.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

7.  Accordingly, orders were published by the Army Physical Disability Agency (USAPDA) in Washington, D.C. directing that he be retired effective 11 June 2008 with a 30% disability rating in the pay grade of E-6.  On 25 November 2008 the USAPDA amended his orders to show he was retired in the pay grade of E-7.

8.  A review of his official records failed to show any indication as to what is reflected as his DIEMS.  However, the applicant had a break in service from 
24 September 1979 to 21 September 1987 which accounts for his PEBD being adjusted to December 1981.

9.  Military Personnel (MILPER) Message Number 03-102, dated 26 February 2003, Subject: DIEMS Date Accuracy announced a Human Resources Command initiative to conduct an Army accuracy scrub to validate DIEMS dates. DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in the Regular or Reserve Component of a Uniformed Service.  Members with a DIEMS date prior to 8 September 1980 are under the Final Pay Retirement Plan.

10.  Title 10, U.S. Code, section 1406 states the retired pay base of any person entitled to retired pay who first became a member of a uniformed service before 8 September 1980 is computed based upon the monthly basic pay of the member's retired grade (also known as Final Pay).

11.  Title 10, U. S. Code, section 1407(a) states the retired pay of any person entitled to that pay who first became a member of a uniformed service after 7 September 1980 is computed using the retired pay base determined under this section.  Subsection 1407(b) states, except as provided for in subsection 1407(f) (pertaining to certain enlisted members), the retired pay base of a person under this section is the person's high-three average determined under subsection (c) (Regular service) or (d) (non-Regular service) (also known as High-3).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DIEMS should have been established as 24 September 1973, the date he enlisted into the U.S. Navy, was carefully considered and appears to have merit.  

2.  The Army's policy stipulates the DIEMS is defined as the date an individual was initially enlisted, inducted, or appointed in the Regular or Reserve Component of a Uniformed Service.  The available evidence confirms the applicant enlisted in the U.S. Navy on 24 September 1973. 

3.  While it cannot be determined by reviewing the available records what date is recorded as the applicant’s DIEMS date, his records should be corrected as appropriate to show that his correct DIEMS date is 24 September 1973.

4.  In view of the facts of this case, it would be appropriate to correct the applicant’s record to show his DIEMS is 24 September 1973 and amending his retirement orders accordingly.

BOARD VOTE:

___x____  ____x___  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that his DIEMS date is 24 September 1973.





      _______ _   _x______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110024836





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ABCMR Record of Proceedings (cont)                                         AR20110024836



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